Submissions to Safe Work Australia’s (SWA) Consultation Regulation Impact Statement (CRIS) on the impacts of implementing the Recommendations of the 2018 Review of the Model WHS laws (2018 Review) closed on 5 August 2019.

AMMA made a submission as part of the consultation process on behalf of employers in the resources and energy industry. The feedback in the submission highlights the impacts of implementing the recommendations and proposed alternative options for addressing problems identified in the 2018 Review. AMMA’s submission provided supporting evidence regarding the implementation of the recommendations to assist SWA in evaluating the anticipated costs and benefits of amending model WHS laws.

AMMA provided feedback on the following recommendations of significant concern to members in the resources and energy industry.

Workplace entry by HSR assistants (Recommendation 8)

AMMA opposes the recommendation that union officials should be free to enter workplaces to assist a Health and Safety Representative (HSR) without being required to hold a valid entry permit under workplace laws. AMMA’s position is that the recommendation would create inconsistencies with industrial relations laws and detract from entry seeking to make genuine safety improvements.

The Fair Work Act 2009’s (FW Act) right of entry regime already creates significant industrial problems for employers, having significantly relaxed the union right of entry provisions that were appropriately balanced and applied responsibly under prior industrial relations systems. Under the current regime there is clear evidence of recurring instances where unions have abused privileges associated with safety to circumvent what little checks remain on the right of entry, to instead further their industrial interests and cause disruption to workplaces.

AMMA submitted that the current model policy should be maintained requiring union officials to hold a valid entry permit when entering a workplace, regardless of the reason for entry, and further clarified to avoid any confusion.

WHS entry permit holders – prior notice of entry (Recommendation 15)

AMMA does not support changes to the current WHS right of entry regime that would allow unions’ access to workplaces without any prior notice of entry. AMMA’s position is that the model WHS laws maintain the provisions of the 2016 amendments, meaning permit holders should operate in accordance with the right of entry provisions, including provision of 24 hours’ notice, under the FW Act.

There is clear evidence that union officials continue to abuse their workplace entry rights for the purpose of advancing the political, industrial and representational agendas of their organisation and often at the expense of genuine health and safety concerns. Removing the requirement for 24 hours’ notice will only further undermine the genuine health and safety interests of employees and promote conflict and disputation between parties. Conflict and disagreement in the workplace has a negative impact on workplace culture which in turn increases exposure to health and safety risks.

AMMA supports maintaining the requirement for 24 hours’ notice prior to entry as a sensible approach to dealing with health and safety matters in the workplace.  In addition to the obvious safety, security and logistical issues associated with allowing individuals to access major resources and energy facilities without prior notice, the safety regime does not need to be supported by a right of entry scheme that involves surprise raids by union officials.

The Category 1 offence and industrial manslaughter (Recommendation 23a and 23b)

AMMA and its members strongly oppose the new fault element for Category 1 offence and the introduction of an industrial manslaughter offence in workplace health and safety laws. The punitive nature of the recommendation to enhance penalties under WHS laws has been a controversial concept and is largely rejected as unnecessary and divisive by the business community.

There is no evidence that the current legislative framework is ineffective in dealing with serious offences, nor is there any evidence that imposing greater criminal liability on individuals for workplace accidents would have a positive impact on safety outcomes.  The 2018 Review found a number of limitations with the model WHS laws in deterring breaches of the general duties provisions – the most obvious and evident being the lack of harmonisation of WHS laws across jurisdictions. This has been a source of frustration and confusion for all stakeholders in understanding how the WHS system applies to their business or operations.

AMMA’s position, consistent with other business representative groups, is that there are existing, appropriate avenues within Australian criminal law for individuals to be prosecuted for gross negligence that has led to a workplace death. A framework that focuses on punitive measures to health and safety compliance diminishes an organisations’ safety culture. AMMA maintains that continuous improvement in safety outcomes in the workplace, is best driven by cooperative, proactive initiatives to enhance safety culture, not an adversarial legal approach seeking to attribute blame and liability after an accident occurs.

AMMA will continue to support and advocate for workplace regulation that is appropriate and balanced and which does not impede productivity, freedom of association and safety in the workplace.

Click here to view AMMA’s submission.

For further information about the submission or the 2018 Review of Model WHS Laws contact [email protected].